R v Barlow, McQueen and White
[1995] QCA 46
•3/03/1995
THE COURT OF APPEAL [1995] QCA
046
SUPREME COURT OF QUEENSLAND
C.A. No. 209 of 1994
Brisbane
Before Macrossan CJ
Pincus JA
Mackenzie J
[R v. Barlow & Ors]
THE QUEEN
v.
SHANE ALLAN BARLOW
ALAN DAVID McQUEEN
and DEBBIE LEE WHITE
Appellants
The Chief Justice
Pincus J.A.Mackenzie J.
Judgment delivered 3 March 1995
SEPARATE CONCURRING REASONS FOR JUDGMENT OF THE CHIEF JUSTICE,
PINCUS JA. & MACKENZIE J.
APPEALS AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BY BARLOW ADJOURNED. APPLICATION FOR
| L | EAVE TO APPEAL AGAINST SENTENCE BY McQUEEN REFUSED. |
CATCHWORDS: | CRIMINAL LAW - conviction - 2 counts armed robbery in company, 1 count unlawful use of motor vehicle with circumstance of aggravation - 3 accuseds - whether trial judge erred in joining counts - whether trial judge erred in refusing to order separate trials - whether trial judge adequately warned jury as to the dangers of convicting on disputed identification evidence. |
| COUNSEL: | A. Rafter for the Appellants M. Byrne Q.C. and Mr P. Bannister for the Respondent |
| SOLICITORS: | Legal Aid Office for the Appellants Director of Prosecutions for the Respondent |
| HEARING DATE: | 26 August 1994 |
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 03/3/95 agree with the reasons which he states for those conclusions. I wish to add my agreement also for the further observations which have been expressed by Pincus JA.
The orders should be as Mackenzie J. indicates.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 03/03/1995
I have read the reasons of Mackenzie J. I agree, substantially for the reasons set out by his Honour, that the appeals against conviction should be dismissed, that the application for leave to appeal by Barlow should be adjourned, and the corresponding application by McQueen should be refused.
I wish to add only a comment with respect to the directions on the subject of identification. There may, in some instances, be room for argument as to whether Domican (1992) 173 C.L.R. 555 directions are required, but here they plainly were. It was therefore not enough for the judge merely to refer to the arguments of counsel about the identification issue and read passages of evidence relevant to that subject; his Honour was obliged to pick out aspects of the Crown's identification case which, in his view, might "reasonably be regarded as undermining" the reliability of that evidence - i.e. which might reasonably be regarded as tending against acceptance of that evidence as establishing identification. Such a task is one which required some analysis of the evidence and comment upon it. For example, if a Crown witness has expressed uncertainty about a particular identification, the jury should be reminded of that and told, for example, that the judge regards it as desirable that they think about the extent to which that weakens the Crown's identification case. Merely telling the jury what counsel have said on the point is not enough and, of course, is not essential.
To some extent the judge in the present case adopted the correct approach, but his Honour's summing-up on identification is open to the criticism that it concentrated upon a recitation of the evidence, and repetition of the submissions of counsel, rather than emphasising in a summary way significant aspects of the evidence, and in particular, weaknesses in it. Nevertheless, on the whole the summing-up on this point seems to me to have been quite fair and I agree that the relevant ground of appeal fails.
JUDGMENT - MACKENZIE J.
Judgment delivered 3 March 1995 offences of armed robbery in company and one of unlawful use of a motor vehicle with a circumstance of aggravation. The first count related to an offence at the Commonwealth Bank, Annerley and the second to an offence at the Commonwealth Bank, Hamilton.
The third count related to the unlawful use of a vehicle in connection with the second robbery. White was indicted and convicted only in connection with the second and third counts. She has appealed only on the basis that the learned Trial Judge erred in law in permitting the joinder of count 1 with counts 2 and 3. Both Barlow and McQueen have raised a number of grounds of appeal including a complaint that the learned Trial Judge erred in refusing to order separate trials of the offences relating to the two incidents. Both Barlow and McQueen have applied for leave to appeal against sentence.
So far as the Annerley offence was concerned two men wearing motor cycle helmets entered the bank on 11 February 1993 and threatened staff with a firearm. After obtaining money they escaped on a motor cycle. A security video showed part of the face of one of the robbers (allegedly Barlow) and that photograph and a photograph of him obtained from other sources were left to the jury. Three eye-witnesses purported to identify McQueen as one of the offenders.
The Hamilton robbery occurred when two men wearing balaclavas entered the bank on 15 February 1993 and, having obtained money, escaped in a white Commodore stolen the previous evening and driven by a blonde woman. The vehicle, the number of which had been taken by a bystander near the bank, was abandoned a short distance away and was found to have in it a carwash ticket which had McQueen's and White's fingerprints on it. McQueen and Barlow were identified as persons who purchased a mobile phone for cash shortly after the robbery in a nearby suburb and on the same day, at a time which the salesmen were unable to fix precisely but which was prior to the time recorded (2.20 p.m.) on a receipt as the time of sale, people identified as McQueen and White purchased a Ford utility for $7,800 in cash. Indeed, a notice of alibi based on the imprecision of the times sworn to by the salesmen was relied on by McQueen and White. Subsequently eye-witnesses were shown photo boards, but no one was able to identify either offender.
The following morning a blonde woman with a mobile telephone booked into a unit at the Gold Coast for five days and paid $430 cash. When the woman booked the unit she gave her name as Debbie Wright and said that she had travelled from the south with a friend.
The following day a police officer observed the Ford utility enter the underground carpark with White driving and McQueen as passenger. McQueen was using a mobile phone. The apartment was later raided and the three appellants were located there. When the unit was searched, two balaclavas, a .22 calibre rifle with magazine and bullets, a receipt for $7,800 in respect of the purchase of the vehicle, a quantity of clothing and shoes, a mobile telephone and battery pack, a handwritten document referrable to firearms, a slide hammer and screwdriver and money totalling $3,635.35 were found. Two motor cycle helmets were located in the tray of the Ford utility but it is accepted that neither of these fitted the description of those used in the Annerley robbery.
Counsel for Barlow conceded that the charges were properly joinable under s.567(2). That concession is appropriate because on the Crown case there was a series of offences of the same or similar character committed in the prosecution of a single purpose. Barlow and McQueen were properly joined in each count because they were alleged to be joint offenders (s.567(5)). White was properly joined with Barlow and McQueen on counts 2 and 3 because she was alleged to be a joint offender in respect of those offences. There is no substance in Barlow's ground of appeal in respect of joinder. It was submitted that he may suffer prejudice if tried together with McQueen because the evidence against McQueen was stronger. However, the learned Trial Judge exercised his discretion upon proper principles and gave appropriate directions to ensure that any potential prejudice was minimised. That ground of appeal is therefore not made out. A fortiori, there is no substance in McQueen's submission that he should have been tried separately.
Mr Rafter, for White, submitted that the counts against her arising out of the Hamilton robbery could not be joined in the same indictment as the count relating to the Annerley robbery. It was submitted that the criteria in s.568(6) had not been complied with. (R v. Barker, Alderman & Hughes (1993) 2 Qd.R. 673). Section 568(6) is concerned with the joinder of persons.
So far as the present case is concerned the tests are whether the persons are charged with committing different or separate offences and whether they are offences arising out of closely related facts so that a substantial part of the facts is relevant to all charges. If the issue of whether the offences arise out of closely related facts is determined in favour of the Crown, the question then is whether a substantial part of the facts is relevant to all charges. Concentrating on count 1 on the one hand and counts 2 and 3 on the other joinder is inappropriate unless there is at least one common factum probans, or a concurrence of a substantial number of circumstances even though there might not, strictly speaking, be any common factum probans. (R v. Leslie (1989) 2 Qd.R. 378, 382).
Mr. Byrne Q.C. submitted that s.568(6) had been satisfied because the offences arose out of closely related facts and there was a common factum probans in the form of the evidence relating to the identity of the offenders. The mere fact that identity is an issue would not necessarily permit joinder in the absence of other factors. The present case had a large circumstantial content. The three appellants were all found at the unit at Surfers Paradise when the police raided it. A large sum of money was found. A sawn off rifle similar to that used in the robberies was found. There were other items found at the unit with varying degrees of relevance to both offences. The evidence specifically referred to formed an integral part of the circumstantial evidence tending to prove the identity of the offenders in the various offences which was the major issue in the trial. Although it is a case close to the borderline, I consider that there was a proper basis on the facts for joinder. Even if joinder were impermissible, that fact would not render the indictment a nullity. Such a defect is an irregularity to which the proviso to s.668E(1) of the Code extends in an appropriate case. (R v Barker, Alderman & Hughes, 678). The circumstantial case against the appellant White was
strong. Adequate directions were given to the jury concerning the impropriety of attributing guilt to her merely by reason of her association with Barlow and McQueen. There is no basis for a finding that if there was a misjoinder the appellant White was denied a fair chance of acquittal. It is clearly a case where the proviso would be applied.
White had also applied for a separate trial, presumably under s.606 although reference was made to s.597A. There is no reason to think that the learned Trial Judge erred in exercising his discretion against the application. In the circumstances there is no substance in the appellant's complaint in that respect. As the appellant White's only ground of appeal relates to being tried with the appellants Barlow and McQueen her appeal must be dismissed.
The appellants Barlow and McQueen each submitted that the two motor cycle helmets found in the Ford utility at the Surfers Paradise unit had been improperly admitted. It was common ground that they were not helmets worn in the Annerley robbery.
When the learned Trial Judge was asked, subsequent to his admitting the helmets, to exclude them he declined to reverse his earlier ruling. The learned Trial Judge instructed the jury that they were of "neutral value" and the helmets did not go into the jury room even though the jury requested them for the purpose of comparing heights of persons wearing helmets with persons who were not. The jury could have been under no misapprehension about the status of the helmets having regard to the way the trial was conducted, and therefore the ground fails. Objection was also taken to the admission of a slide hammer and screw driver which were not shown to have been connected to any of the offences. These items were found in the same suitcase as the balaclavas. The Commodore used in the Hamilton robbery had been forcibly entered and the highest it could be put was that the finding of these implements showed that the appellants had the capacity to break into a motor vehicle through the lock. No particular emphasis appears to have been placed on these items and while their probative value may not be great, their admission in evidence cannot be said to have led to any miscarriage of the trial. It was further submitted that the hand written list had no probative value. Similar comments apply. There is no basis for allowing the appeal on either of these grounds.
Both Barlow and McQueen complain about the directions given in respect of identification. The duty of a Trial Judge in directing the jury in a case where identification is a significant part of proof of guilt appears in the following passages from Domican v. The Queen (1991-92) 173 C.L.R. 555, 561-2, 565:
"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence."
...
"..the adequacy of a warning in an identification case must be evaluated in the context of the evidence in the case. But its adequacy is evaluated by reference to the identification evidence and not the other evidence in the case. The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence."
To address this ground it is necessary to analyse the summing-up, which was lengthy, in a little detail. The learned Trial Judge correctly told the jury that there was no evidence of direct or positive identification of any of the appellants at the banks except in respect of McQueen at Annerley. He told them that circumstantial evidence was relied upon but because identification played a central part in the case it was necessary to give a strict instruction regarding it. The learned Trial Judge then gave a satisfactory direction in general terms on identification evidence.
He then told the jury that there may be cases where quality of identification is poor but other evidence may support its correctness. The case was one where the Crown case was that identification evidence of doubtful value was supported by other evidence implicating the accused persons. He told the jury in general terms that they should take into account the circumstances in which the identification came to be made such as the time for observation, the distance involved, the visibility, the effect of fear, prior acquaintanceship and any specific reason for remembering the accused that the witness may have.
When the summing-up resumed the next morning the learned Trial Judge told the jury that the purported identification of one or more of the appellants at other locations on the day of the Hamilton offence, if accepted, was circumstantial evidence tending to prove that person's involvement in the robbery. Later he summarised evidence admitted by consent from Mr Currie who picked two photographs from a photo board one of which was of McQueen and which was nominated as "most likely to the one .... with the gun" at the bank at Annerley. He said that he had previously seen a newspaper photograph of the person and conceded that this may have influenced his identification. The learned Trial Judge specifically told the jury that if the identification evidence as to the first robbery was only that of Mr Currie he would tell them it was too unreliable and that they should not act on it alone. However he then directed the jury that it did not stand alone because there was evidence of identification from two other witnesses, which he read in some detail. In the course of doing so he said that there was no suggestion of collaboration between them. The evidence of each was quite independent of the other. He said,
"So it is for you to say whether this is just one of those coincidences. It can happen of course. You can have two people who are honestly mistaken, but consider the way the identification was gone about. What are the mathematical probabilities of both being mistaken?"
The evidence of the witnesses, including cross-examination on matters affecting the quality of the evidence, was read in some detail but there were no specific comments by the learned Trial Judge on weaknesses in it. In directing on the evidence about the Annerley robbery, which was captured on security camera, he told the jury they might use that evidence, if they wished, to draw conclusions about body build, proportion and so forth but reminded the jury that "distortion can occur with that sort of film". The Crown had invited the jury to look at still photographs taken from the film to see if the nasal features of one of the robbers bore a resemblance to Barlow's nasal features. The learned Trial Judge said with respect to this evidence:-
"Now I warn you to be careful not to jump to conclusions from that limited perspective, but it is one matter among many you can take into account, but I would suggest to you that you should not rely on that as positive identification. It is just a circumstance in the case which you are entitled to consider along with others."
He then reminded the jury of the defence submissions on that Domican required a specific direction as to matters which could reasonably be taken to undermine the reliability of the identification of McQueen. The learned Trial Judge drew attention to the fact that when he commenced to direct on the evidence of the two eye-witnesses other than Mr Currie at the Annerley robbery he had said :-
aspect.
During the course of directing on the use of security
camera evidence in connection with the footwear of the robbers
he again reminded the jury of the possibility of distortion.
After reminding the jury that the only photo board
identification of any accused was of McQueen as a participant in
the Annerley robbery the learned Trial Judge read passages from
the evidence of a witness at Optus who identified Barlow and
McQueen from a photo board as persons who purchased a mobile
phone for cash shortly after the Hamilton robbery. He read the
evidence in detail but did not comment on the strengths or
weaknesses of it.
There was strong circumstantial evidence, some of which has
been referred to above, linking the mobile phone to the accused
persons. In addition there was evidence that the phone had
malfunctioned shortly after it was purchased and the number of
the unit at Surfers Paradise was given as the contact point.
At the conclusion of the summing-up counsel for Barlow and
McQueen sought redirections on identification. Counsel for
Barlow asked for a direction in accordance with R. v. Turnbull
(1977) Q.B. 224, 228, that one of the dangers of identification
evidence is that an honest but mistaken witness can be a
convincing witness. He also asked for a redirection to make it
plain that several witnesses may each be mistaken in the light
of the rhetorical question asked of the jury about the
mathematical probability of witnesses making the same mistake.
It was also submitted that comments should have been made
that an actual line-up parade was preferable to a photographic
line-up. The learned Trial Judge refused this particular
redirection on the basis that although it was not in evidence
before the jury it was apparent that the accused had refused to
be co-operative with the police and that the defence had not
raised the issue during the course of the trial. In the
particular circumstances of the case the learned Trial Judge was
not at fault in refusing to direct in this way.
"It is necessary here to read fairly extensively from the transcript, in fairness, because I am bound to point out to you not only evidence which points positively to identification but to weaknesses in that evidence and each counsel in his address certainly has done that. I don't want to be repeating unduly what they have already referred to but I feel duty-bound in the case of Gardyne and Scott to read extensively from their evidence."
Counsel submitted that in respect of Barlow the different camera angles involved in the print from the security camera and the other photograph tendered by way of comparison should have been the subject of a specific direction. He further submitted that the facts that it involved the comparison of a black and white photograph with a colour photograph and that only a small part of the face was visible in the security photographs were matters upon which a specific direction should have been given. He requested the learned Trial Judge to put the weight of his judicial office behind those comments rather than simply refer to them in the context of counsel's address.
Mr. Godsell for McQueen submitted that Domican required a Trial Judge not merely to read, without comment, passages from the transcript but to highlight those aspects, as he was reading them, which might operate as factors depreciating the value of the identification evidence. He submitted that if it was not done in that way the identification of weaknesses would not come to the jury with the authority of the Trial Judge. He submitted that the reference to strengths and weaknesses quoted above was inadequate to discharge this duty. He submitted further that merely referring to the fact that weaknesses had been referred to in Counsel's address was not sufficient. Weaknesses had to be identified and specifically referred to.
In the event, the learned Trial Judge declined to redirect.
It is apparent from the exchanges during the application for
redirections that the learned Trial Judge was of the view that
what he had said to the jury and, in particular, reading both
the strong and the weak points about identification directly
from the transcript, discharged his duty. The question is
whether in all of the circumstances of the case this was a
Garrett Domican
sufficient direction on identification.
The Crown relied on R v. Garrett & Ors (unreported 15 February 1993 Court of Appeal) in support of the course adopted by the learned Trial Judge. In the trial had been held prior to the decision in but the appeal was heard subsequently. Pincus and McPherson JJA after referring to a strong warning given by the Trial Judge as to the dangers of convicting on identification evidence where its relevance is disputed, dealt with the argument that the Trial Judge had failed to draw attention with the authority of his office to specifically weaknesses in the identification evidence in the following terms:
"In our opinion, a judge is not necessarily required to express to the jury the opinion that the identification evidence is, in fact, weak, merely because it is capable of being criticised in certain respects. What the judge has to do is to draw the jury's attention to aspects of the evidence which they might reasonably think affect the reliability of the identification; whether those aspects do in fact undermine it is, of course, a matter for the jury. Here, in the course of a full and detailed analysis of the identification evidence, the judge did not direct the jury that any aspect of that evidence ........ was
in his opinion suspect or especially unreliable. But his Honour did give the jury the details of evidence of that kind and reminded them what the defence had said about it. It would, in the circumstances, have been preferable if the judge had not merely have indicated, in this way, the possible weaknesses in the identification evidence, but himself urged the jury to scrutinise those aspects. The absence of the latter exhortation did not vitiate the summing up; at the least, it seems impossible to say that this supposed deficiency in the summing up could have had any bearing upon the result of the trial."
In the present case the learned Trial Judge (who was also the Trial Judge in Garrett) has adopted the same approach to his summing up. He gave a strong and detailed general direction about identification evidence. He read passages from the evidence of eye-witnesses concerning the identification of McQueen at the bank at Annerley and at Optus. Prior to reading the evidence of the eye-witnesses at Annerley he explained his obligation to point out not only evidence which pointed positively to identification but to weaknesses in that evidence.
He reminded the jury in general terms that each counsel had already done that. He commented upon other aspects of identification evidence especially the security camera photograph of Barlow and the evidence of identification of McQueen by Mr Currie, telling them that standing alone those pieces of evidence were insufficient to be acted upon. He reminded the jury that distortions could occur in film taken by a security camera.
On an overall view of the summing up I conclude that the directions on identification were adequate in the circumstances of the case. However I repeat that it is preferable if the Trial Judge gives a specific direction in dealing with the strengths and weaknesses in the evidence of each witness who purports to identify the offender. Such a course is calculated to remove any possible cause for complaint and should be adopted so that compliance with Domican is explicitly demonstrable rather than ascertainable only by exhaustive analysis of the summing up. The ground of appeal is therefore not made out.
On behalf of the appellant Barlow it was submitted that the direction relating to the dangers associated with the evidence of identification of him was inadequate. In respect of the Annerley robbery the robbers were captured on film from a security camera. A photograph of Barlow was also tendered and the Crown Prosecutor invited the jury to examine the security camera photograph to see if there was any similarity to Barlow's nasal features. The Trial Judge gave the jury a specific warning, quoted above, against relying on that feature alone as positive identification. It was submitted that the Trial Judge should have acceded to counsel for Barlow's request to draw attention to matters which might undermine the reliability of such an exercise such as the different camera angles in the photographs, the difficulty in comparing a black and white photograph with a colour photograph and the fact that only a small part of the robber's face was visible in the security photographs. Counsel for the Crown submitted that the learned Trial Judge's directions were adequate and there is no reason to disagree with that submission.
It was also submitted that the direction concerning the finding of potentially incriminating items in the unit at Surfers Paradise and the inferences that could be drawn against Barlow was inadequate. The learned Trial Judge reminded the jury of Barlow's counsel's submission that no connection had been established between the items found in the unit and Barlow.
The learned Trial Judge declined to redirect the jury by telling them that there was no evidence that Barlow possessed any of the items in the unit other than the clothing he was wearing. It was submitted that such a direction should have been given. A Trial Judge has a discretion as to what comments if any he makes in respect of individual items of evidence. Counsel for the Crown had submitted that there was evidence of Barlow associating with McQueen shortly after the Hamilton robbery and that the discovery of the three appellants together in the unit, together with evidence that Barlow's hair was of a similar colour to that of one of the robbers, established a prima facie case of possession. Given the discretion allowed to a Trial Judge in commenting upon the evidence I am not persuaded that there is any substance in this ground.
It was also submitted on behalf of the appellant Barlow that the learned Trial Judge failed to direct the jury adequately with respect to the evidence admissible against him.
The learned Trial Judge correctly directed the jury as to their function in a joint trial including that the jury must have regard to the evidence relevant only to each particular accused when coming to its verdict. The summing-up does not demonstrate any error on the part of the learned Trial Judge in discharging his function in this regard.
The appellant Barlow also relies on the ground that the verdicts are unsafe and unsatisfactory. A number of matters are particularised as being relevant to this issue. There was evidence from which the jury might properly have found that Barlow was guilty of each of the offences with which he was charged. The case is of sufficient strength to allow a confident conclusion that the verdicts are not unsafe and unsatisfactory. McQueen appeals on the ground that the learned Trial Judge failed to give sufficient direction to the jury to allow them to assess properly the alibi evidence from witnesses Harradine and Adams. These witnesses worked at the car yard where the Ford utility was purchased. One of the complaints is that the learned Trial Judge told the jury that the times sworn to by the witnesses were very flexible and very vague. A reading of their evidence leads to the conclusion that that comment was not only permissible but accurate. A complaint is made that the learned Trial Judge refused to give a redirection to the effect that the jury should not consider the evidence of Harradine and Adams "in any second rate class". It was a matter for the learned Trial Judge to decide whether to give the redirection having regard to the balance of his summing up. There is nothing to indicate that he erred in declining to redirect.
| None of the grounds argued succeeds. The appeals against imprisonment for the armed robbery offences and to three years' imprisonment for the offence of unlawfully using a motor vehicle. He too had a lengthy criminal record extending back to 1983. It included a number of offences of dishonesty including a conviction in 1991 for armed robbery in company for which he was sentenced to five years' imprisonment. Application for leave to appeal against that sentence was refused. He was therefore on parole at the time of commission of the present offences. No specific non-parole period was prescribed for the present offences. So far as the head sentence is concerned there is no reason to differentiate between the applicant and Barlow. Their criminal histories are comparable and both not long before had committed an offence of a similar nature to the present offences. On behalf of McQueen it was submitted that the proper range was ten to twelve years' imprisonment. However having regard to the circumstances of the present offences it cannot be said that a sentence of thirteen years was manifestly excessive. The application for leave to appeal against sentence by McQueen is therefore refused. conviction by both Barlow and McQueen must be dismissed. | Barlow was sentenced to thirteen years' imprisonment for |
It was submitted on behalf of the appellant McQueen that although the learned Trial Judge directed the jury to consider the case against each accused separately on each count he should not have declined a request to direct the jury specifically that if it convicted anyone of the Annerley robbery that finding could not be used in deciding whether to convict in respect of the Hamilton robbery. The direction given was adequate to remind the jury of the duty to keep the counts separate and to consider the case of each accused separately. In the circumstances, it was within the discretion of the learned Trial Judge whether to give the further direction or not. The fact that he chose not to give it does not give rise to any sustainable ground of appeal.
The orders are the following:-
Barlow
Appeal against conviction dismissed. Application for leave to appeal against sentence adjourned to a date to be fixed.
McQueen
Appeal against conviction dismissed. Application for
leave to appeal against sentence refused.
White
Appeal against conviction dismissed.
0
0
0